State ex rel. Anderson Motor Service Co. v. Public Service Commission

• Citation: 134 S.W.2d 1069,234 Mo.App. 470
• Parties: STATE EX REL., ANDERSON MOTOR SERVICE COMPANY ET AL., RESPONDENTS, v. PUBLIC SERVICE COMMISSION ET AL., APPELLANTS
• Decision Date: 20 November 1939
• Court: Court of Appeals of Kansas

134 S.W.2d 1069

234 Mo.App. 470

STATE EX REL., ANDERSON MOTOR SERVICE COMPANY ET AL., RESPONDENTS, v. PUBLIC SERVICE COMMISSION ET AL., APPELLANTS

Court of Appeals of Missouri, Kansas City

November 20, 1939

Appeal from Cole Circuit Court.--Hon. Nike G. Sevier, Judge.

AFFIRMED AND TRANSFERRED TO THE SUPREME COURT.

Judgment affirmed.

D. D McDonald and June R. Rose for respondents.

(1) The discretion of the Commission in granting certificates of convenience and necessity is controlled by three principal considerations: (a) Transportation service being furnished by other carriers. (b) The permanency and continuity of the proposed service. (c) The effect which the proposed service may have upon other existing forms of transportation service. (2) It was not within the judicial power of the circuit court to direct the kind of an order for the Commission to make the court cannot substitute its judgment for that of the Commission, and neither can the Commission surrender its jurisdiction and duties to the court. The functions of the Public Service Commission are legislative and administrative and the court cannot invade that province. It is the duty of the court, when there is not sufficient evidence to support the finding of the Commission to reverse the matter and remand it to the Commission for further consideration. (3) The rules with reference to judgments in court do not apply to orders of the Commission. (4) Brooks violates the law whenever he transports any property between St. Louis and Kansas City, regardless of the rate charged, and attempts to show a public benefit by setting up his own illegal acts. (5) The Public Service Commission should have denied the authority requested by Brooks because of his continued illegal operations. (6) It was unlawful for Brooks to engage in such transportation without having rates on file. (7) Brooks is not in all respects qualified under the provisions of the Missouri Bus and Truck Law, Subsection c, Section 5268. (8) The Public Service Commission is authorized to fix all motor carrier rates on all commodities moving from point to point in Missouri. Such rates established by the Commission are the lawful rates, and no other rates should be charged. Ward v. Public Service Commission, 108 S.W.2d 136. (9) The law requires a carrier to secure a certificate of convenience and necessity before operating or rendering service. (10) Until public convenience and necessity has been established in accordance with the Public Service Commission Law of Missouri, Brooks should not be permitted to operate between the points heretofore denied by the Commission. State ex inf. Barker, Attorney General, ex rel. Kansas City v. Kansas City Gas Co., 254 Mo. 519, 163 S.W. 854, l. c. 857; State ex rel. Missouri Pacific R. Co. et al. v. Public Service Commission, 327 Mo. 240, 37 S.W.2d 579; State ex rel. Electric Co. v. Atkinson et al., 275 Mo. 325, 204 S.W. 897. (11) The protection given the utility is incidental. The policy covers a particular case when competition would impair or destroy a utility and, as a consequence, entail an increase in rates. Pond on Public Utilities (3 Ed.), sec. 731, p. 778; Highway Transport Case, P. U. R. 1926-B; State ex rel. Detroit-Chicago Motor Bus Co. v. Public Service Commission, 324 Mo. 270, 23 S.W.2d 115, l. c. 117; State ex rel. K. C. P. & L. Co. v. Public Service Comm., 76 S.W.2d 343.

James H. Linton and Daniel C. Rogers for appellant Public Service Commission of the State of Missouri.

(1) The power to grant or refuse a certificate of convenience and necessity to establish and operate motor carrier service is committed, within defined limits, to the Public Service Commission of the State of Missouri. Sec. 5267, R. S. Mo. 1929 (As amended, Laws 1935, p. 321); Sec. 5268, subsecs. (a) and (c), R. S. Mo. 1929. (As amended, Laws 1935, p. 322; State ex rel. Alton Transp. Co. v. Public Service Comm., 330 Mo. 1, 49 S.W.2d 614; State ex rel. Alton Transp. Co. v. Public Service Comm., 329 Mo. 1139, 49 S.W.2d 619; State ex rel. Detroit-Chicago Motor Bus Co. v. Pub. Serv. Comm., 324 Mo. 270, 23 S.W.2d 115; State ex rel. Pitcairn, et al. v. Pub. Serv. Comm. (Mo. App.), 110 S.W.2d 367; State ex rel. Potashnick Truck Service, Inc. v. Pub. Serv. Comm. (Mo. App.), 129 S.W.2d 69. (2) A court has no power to set aside a report and order of the Public Service Commission granting a certificate of convenience and necessity where the record shows substantial evidence to support such report and order and where the action of the Commission has been neither unlawful, unreasonable nor capricious. Such action on the part of a court would be usurping the discretionary powers of the Commission by substituting the judgment of the court for that of the Commission and, for all practical purposes, would be an exercise by the court of the function of refusing to grant such certificate of convenience and necessity. Sec. 5234, R. S. Mo. 1929 (R. S. 1919, sec. 10522); State ex rel. Kansas City Southern Ry. Co. v. Pub. Serv. Comm., 325 Mo. 1054, 30 S.W.2d 112; State ex rel. City of St. Louis v. Pub. Serv. Comm., 329 Mo. 918, 47 S.W.2d 102; State ex rel. Terminal Ry. Co. v. Pub. Serv. Comm., 308 Mo. 359, l. c. 380. (3) The power of the Public Service Commission to grant or refuse to grant a certificate of convenience and necessity to establish and operate motor carrier service is not controlled or limited by what the Commission or the courts may have done in other cases where, to the private interests involved, the facts and circumstances may seem identical. The controlling consideration is, what does the public interest require under the particular facts and circumstances and at the particular time the matter is before the Commission for determination. Sec. 5280, R. S. Mo. 1929 (As amended, Laws 1931, p. 304); State ex rel. Interstate Transit Lines, Inc. v. Pub. Serv. Comm. of Mo. Kansas City Court of Appeals not yet reported. (4) All orders of the Public Service Commission are prima facie lawful and reasonable and the burden is upon the one seeking to set aside any such order to clearly show that it is unreasonable or unlawful. Secs. 5246, 5247, R. S. Mo. 1929; State ex rel. Detroit-Chicago Motor Bus Co. v. Pub. Serv. Comm., 324 Mo. 270, 23 S.W.2d 115; State ex rel. Potashnick Truck Service, Inc. v. Pub. Serv. Comm., 129 S.W.2d 69; State ex rel. Pitcairn, et al. v. Pub. Serv. Comm. 110 S.W.2d 367; State ex rel. Kansas City Power & Light Co. v. Pub. Serv. Comm., 335 Mo. 1248, 76 S.W.2d 343.

H. P. Lauf and John O. Bond for appellant, Perry A. Brooks.

(1) A right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, and this is the doctrine of res judicata. Baumhoff v Railroad, 205 Mo. 248, 263; Womack v. St. Joseph, 201 Mo. 467, l. c. 476. (2) Where proceedings in the Public Service Commission are appealed to the circuit court by one of the interested parties, all other interested parties are required to keep themselves informed and are bound by the result and decision on the appeal without any formal notification of the appeal, and they are privies with the appealing party and the decision on appeal is conclusive. State ex rel. Anderson Motor Service Co., Inc., v. Pub. Serv. Comm. (Mo.), 97 S.W.2d 116, l. c. 118, 119. (3) A former judgment is conclusive not only as to questions which were raised but is also conclusive to every question which could have been raised. U. S. ex rel. First Nat. Bk. of Cape Girardeau v. Lufcy (Mo.), 49 S.W.2d 8, l. c. 14; State v. Bliss (Mo.), 99 S.W.2d 71, 72. (4) A former judgment even though it may be erroneous so that it might have been reversed on appeal is nevertheless effective as a bar to further suits. U. S. ex rel. First Nat. Bk. of Cape Girardeau v. Lufcy (Mo.), 49 S.W.2d 8, l. c. 14; State ex rel. McGrew Coal Co. v. Ragland, (Mo.), 97 S.W.2d 113, l. c. 115. (5) Where an appeal is taken to the court of last resort and the action of the court below is affirmed for want of a proper brief, the matter is res judicata and the parties concluded, notwithstanding the fact that the appellate court had no opportunity to pass on the merits of the question raised by the appeal. Miller v. Bernerker, 46 Mo. 194, 196. (6) One who questions the reasonableness and lawfulness of the Public Service Commission's order has the burden of proof. State ex rel. United Tel. Co. v. Pub. Serv. Comm., 336 Mo. 860, 81 S.W.2d 628; sec. 5247, R. S. Mo. 1929; State ex rel. Pitcairn v. Pub. Serv. Comm., 110 S.W.2d 367. (7) The lower court did not have jurisdiction to reverse the order of the Commission because the law does not permit a change of venue in a Public Service Commission case. Sec. 5234, Laws of Mo., 1937, p. 433; Sec. 5234, R. S. Mo. 1929; Ward v. Pub. Serv. Comm., 108 S.W.2d 139; State ex rel. v. Seehorn, 283 Mo. 508, 530. (8) Where a holder of a certificate of convenience and necessity to act as a common carrier over a regular route carrying freight by motor vehicle for hire purchases another regular route which joins into his original routes the Public Service Commission may allow a consolidation of the original route with the newly purchased route if it finds that such consolidation will be beneficial to the public. Sec. 5268(c), Laws of Mo., 1931, p. 309. In the event of such purchase, when there is a consolidation of one or more certificates of convenience and necessity and when through service will be beneficial to the public, such through...